Klimowicz v. Purer

246 A.D.2d 330, 666 N.Y.S.2d 916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1998
• Status: Published

Opinion

—Order, Order, Supreme Court, New York County (Carol Arber, J.), entered on or about March 28, 1997, which to the extent appealed from as limited by the briefs, denied the motion of defendants Purer and Winoker Realty Co. and the cross motion of defendants A & G Expansion, Wald and Tajcher, respectively, for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim, unanimously reversed, on the law, without costs, the motion and cross motion are granted and the complaints dismissed as to the appealing defendants-appellants. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaints.

Plaintiff sustained injuries to his right arm when he was unloading a 17-foot-long metal beam, weighing 400 to 500 pounds, off the back of a dump truck in which he was standing. As plaintiff slid the beam off the rear of the truck’s cab, the back end hit the ground while the front end began sliding off the top and side of the truck, striking plaintiffs arm in the process. As we conclude that plaintiffs injuries resulted from risks not covered by Labor Law § 240 (1) (see, Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843; Vornfett v Port Auth., 238 AD2d 134; Phelan v State of New York, 238 AD2d 882, lv denied 90 NY2d 812), we reverse and grant the motion and cross motion for summary judgment.

In light of the foregoing, plaintiffs request that we search the record and grant him partial summary judgment on his Labor Law § 240 (1) cause of action is denied. Additionally, as plaintiff has consented to the dismissal of his causes of action under Labor Law § 241 (6) and § 200, as to the appealing defendants, the complaints are dismissed in their entirety as to defendants-appellants. Concur—Ellerin, J. P., Williams, Tom and Mazzarelli, JJ. [As amended by unpublished order entered July 16, 1998.]